New EEOC Guidance on COVID-19

New EEOC Guidance on COVID-19

October 01, 2022
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Closeup of female hands holding a COVID-19 rapid test result.

On July 12, 2022, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 technical assistance Q&As.

The updated guidance addresses hiring, reasonable accommodations, returns to work, testing protocols, vaccination mandates and employer incentives for voluntary COVID-19 vaccinations as they relate to the Americans with Disabilities Act (ADA) and other equal employment opportunity laws.

Read on for some key aspects of the new guidance.

Hiring

Screening an applicant for COVID-19 symptoms

You may screen an applicant for COVID-19 symptoms, provided:

  • A conditional job offer has already been made.
  • All other applicants who have received a conditional job offer for the same type of job are also required to submit to a COVID-19 screening.

However, if you screen everyone who enters a work site, such as employees, contractors and visitors, then a pre-offer screening would be permitted.

For example, you may require an applicant to submit to a COVID-19 screening to enter the workplace for an interview, as long as it’s the same type of screening that other individuals are subjected to. Anything beyond that would constitute an unlawful disability-related inquiry or medical examination.

Be aware that selective screening and exclusion practices could be construed as disparate treatment against an individual or a class of employees based on their protected traits. That is unlawful under federal antidiscrimination law.

Withdrawing a job offer after receiving a positive COVID-19 test result or evidence of symptoms or exposure

In this case, consider all the facts. Specifically, the EEOC says to follow current Centers for Disease Control and Prevention (CDC) guidance on when it’s safe for someone to enter the workplace after testing positive, displaying symptoms or being exposed. If the job requires close contact with others, you should also consider:

  • Postponing the start date, if the job does not require them to start immediately
  • Offering remote work so they can start the job while in quarantine

If you believe an applicant is at increased risk for COVID-19-related health issues due to advanced age, pregnancy or an underlying medical condition, you cannot postpone their start date or withdraw the job offer on that basis.

But if the applicant has an underlying medical condition that constitutes a disability, you have a duty to determine whether an immediate start date would pose a “direct threat,” and if so, whether a reasonable accommodation could sufficiently lessen or eliminate any risks without causing an undue hardship.

Returns to work

Requesting medical documentation for a return to work

If an employee has been out due to COVID-19, you may require them to provide a medical note explaining that it’s safe for them to return to work and they are able to perform their job functions.

The EEOC’s FAQs note that COVID-19 isn’t always a “disability” under the ADA, so requesting such documentation isn’t necessarily a disability-related inquiry. But in cases where it does constitute a disability-related inquiry, it’s still justified under the ADA because it’s job related and born out of business necessity.

That’s because knowing if it’s safe for an employee to return to work has to do with an employer’s “objective concern” about the possibility of viral transmission and the employee’s ability to resume job duties that require physical exertion.

Requesting antibody testing for a return to work

Antibody testing is not permitted under the ADA. According to the EEOC, “An antibody test, as a medical examination under the ADA, must be job-related and consistent with business necessity.”

According to the CDC’s guidance on using COVID-19 antibody tests, antibody testing may not show whether an employee has a current infection. Nor can it establish that an employee is immune to infection. Therefore, “It should not be used to determine whether an employee may enter the workplace.”

Reasonable accommodations

Delaying evaluating a request for an ADA accommodation

Pandemic-related issues could delay your ability to engage in an interactive process or provide a reasonable accommodation. In some cases, by the time you are able to grant the request, the need may no longer exist. If a situation like this arises, you must be able to show that pandemic-related circumstances justified the delay.

“To the extent that evolving circumstances created by the pandemic cause a justifiable delay in the interactive process–thereby delaying a decision on a request–employers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible,” the EEOC states.

Granting a reasonable accommodation based on age

While older workers may be more susceptible to developing severe illness from COVID-19, you cannot involuntarily exclude employees protected under the Age Discrimination in Employment Act (ADEA) from work just because they’re older. However, you could offer older workers greater flexibility, even if that means younger workers are treated less favorably.

Keep in mind that any employee with a medical condition could be entitled to protections under the ADA. If they qualify as having a disability, they are entitled to a reasonable accommodation. That's unless granting it would place an undue hardship on you as the employer.

Likewise, an employee with a sincerely held religious belief, practice or observance is entitled to a reasonable accommodation under Title VII of the Civil Rights Act, unless granting it would cause an undue hardship.

General testing protocols

Mandating COVID-19 screenings, including viral tests

You may require an employee to submit to a COVID-19 viral test to determine if they can safely return to work, as long as you can show the screening is job related and consistent with business necessity. These are the same factors that must be met for a medical examination to pass legal muster under the ADA.

To determine whether a viral test is consistent with business necessity, the EEOC says to check the CDC’s website for guidance regarding the appropriateness of COVID-19 screenings. You must also weigh the following factors:

  • The community transmission level
  • The employee’s vaccination status
  • The accuracy and speed of processing viral tests
  • The possibility of breakthrough infections for those who are current on COVID-19 vaccinations, according to the CDC
  • How transmissible current variants are and the likelihood of severe illness from those variants, according to the CDC
  • The type of contact the employee may have with others in the workplace

Updated guidance from the Food and Drug Administration and state or local public health authorities may also be helpful for evaluating business necessity.

Incentives for voluntary vaccination

The ADA does not limit the value of vaccination incentives, whether rewards or penalties, when a health care provider administers the vaccine. This applies to vaccines given by the employee’s personal physician, another health care provider, a pharmacy or a public health department that is not affiliated with the employer.

But if you offer an incentive for an employee to voluntarily receive a vaccination that you administer or you hire an agent to administer, then ADA rules on disability-related inquiries apply. If you are administering the vaccine and the reward is deemed too substantial, it could be viewed as coercive and unlawful under the ADA.

Mandatory vaccination requirements

You may require employees to get vaccinated, as long as you meet your legal obligation to provide reasonable accommodations to workers protected under the ADA and Title VII. And you may require documentation or other confirmation of vaccination status.

But if a worker requests to bypass the vaccination requirement, you must determine whether that accommodation would pose a direct threat to the safety or health of that individual or others.

The EEOC provides some examples of reasonable accommodations:

  • Asking the employee to wear a mask
  • Arranging staggered shifts
  • Improving ventilation or limiting contact with others
  • Allowing telework if it’s practical given the employee’s position
  • Reassigning the employee to a vacant position in a different workspace

As a best practice, inform your workforce if you will require documentation or other confirmation of vaccination status. And state that you will consider requests for reasonable accommodation due to disability or religious reasons on an individual basis.

Remember to keep any documentation regarding vaccination status safe and separate from the employee’s personnel file.

Government resources can help you understand your obligations

The EEOC has been regularly updating its Q&A on COVID-19 and EOO laws. Check the website often to see if new updates have been posted.

The CDC’s COVID Data Tracker is another useful tool for getting updates on cases, deaths and testing by county.

The COVID-19 public health emergency is still in effect

On July 15, 2022, the Department of Health and Human Services renewed its declaration of the COVID-19 public health emergency (PHE). Therefore, COVID-19 remains top of mind from an ADA compliance perspective.

The PHE makes it more likely that a mandatory testing policy would be deemed consistent with business necessity, but you should seek legal counsel before implementing such a policy.

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